Lazaridis v Humphris-Clark

[2010] NSWCA 349

NSW Court of Appeal

Built by Barristers,
For Australian Law.

1. APPEAL - civil - leave to appeal - whether parties reached binding agreement to settle dispute - deed of release - no sufficient basis that appeal would be successful

An agreement to settle litigation reached by counsel through an offer and unequivocal acceptance may be immediately binding even though a formal deed of release remains to be drafted. On the facts, the exchanges between counsel 'smacked of agreement from start to finish'.
Terms later inserted into a propounded deed form no part of the settlement agreement unless they were agreed. Here, a confidentiality requirement and a 28-day payment period went beyond the agreement found. The terms actually agreed, a cheque in exchange for a release, govern.
In seeking specific performance of a settlement agreement, failure to adduce evidence that the party seeking enforcement was ready, willing and able to perform an agreement of the precise scope found by the trial judge was held not to be a vice warranting leave to appeal.
Where an application for leave to appeal is 37 days out of time without explanation, the court may refuse leave on the basis that there is no sufficient basis to think the appeal would succeed. The court need not resolve whether the delay was the fault of the legal representative or the client.